As important as the fact that the Tenth Circuit denied the state of Utah’s request for stay from Judge Shelby’s ruling that the state’s gay-marriage ban is unconstitutional, is the reason they did so.

A stay pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir.2001); 10th Cir. R. 8.1. The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively. Nken v. Holder, 556 U.S. 418, 434-35 (2009).

Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted.

In other words, the Tenth Circuit looked primarily at two things. They asked themselves if the state was likely to succeed on appeal and found the answer to be “no”. And they took the state’s chief argument for stay – that allowing marriages now will harm the gay people who will only have their marriages reversed later – and said “we don’t think so.”

We don’t know why the Court delayed responding until so late in the day. It may be that they made efforts to determine or ponder the general feeling of the other circuit members. But even if not, considering that the two judges considering stay, Holmes and Bacharach, are among the conservative members of the Tenth Circuit, this may bode well for the appeal.

” And they took the stateâ€™s chief argument for stay â€“ that allowing marriages now will harm the gay people who will only have their marriages reversed later â€“ and said â€œwe donâ€™t think so.â€

Is this really their logic? They,re not concerned about the harm done to gay people right now, harm done by the government and Church of Utah, but they,re concerned about the possible harm done to them later if the harm done to them right now is not allowed to continue?

They did agree to an expedited appeal on the merits, which I assume will be a standard 3 judge panel and after that most likely an en banc by the entire 10th circuit. Keep in mind this is the same 10th circuit that ruled en banc 5-3 for Hobby Lobby in a truly horrible decision so who knows what they will do on the merits.

“Is this really their logic? They,re not concerned about the harm done to gay people right now, harm done by the government and Church of Utah, but they,re concerned about the possible harm done to them later if the harm done to them right now is not allowed to continue?”

Actually those are different points (2 and 3) that have to be shown by the applicant (the state of Utah in this case) and examined by the court:

(1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest.

And obviously points 1 and 2 are intertwined: If judge Shelby’s ruling is confirmed, there won’t be any harm to those samesex couples that have married since December 20th and no harm to the state or anybody else either (some heads exploding and angry/disappointed press-releases don’t not legally count as harm).

If the ruling were reversed on appeal, there might be significant harm. This is not a situation like in California between the ruling of CA Supreme Court and the passage of prop 8, when same-sex marriages were and remained legal. A reversal means that the ruling is treated like it never existed, so there would be no legal basis for all those several hundred same-sex marriages in Utah. In the meantime some of the couples will probably have filed their tax-returns, changed their insurance policies and mortgages, told their employers, etc. Undoing all this would be a big legal headache and also costly. And county officials would have to undo all those entries in databases and registers they entered when those couples married.

So, IMO, the really interesting question is what this tells us about the probable outcome of the appeal.

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